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Sen. Domenici’s Summary of S. 2326

Cite as "AILA InfoNet Doc. No. 06022166 (posted Feb. 21, 2006)"

THE WISH ACT OF 2006 - SECTION BY SECTION ANALYSIS

Section 1 - Short Title

Section 101 - requires DHS, subject to the availability of appropriations, to add 2000 new investigators to enforce human smuggling laws and laws prohibiting the hiring of illegal aliens and 1000 new Immigration Enforcement Agents for immigration fraud detection for each of FY2007-2011.

Section 102 - increases the penalty for an alien who falsely claims citizenship to obtain employment to up to $5000 and imprisonment of up to 3 years, and increases the penalty for repeatedly hiring illegal aliens to up to $5,000.

Section 103 - adds penalties for the misuse of Social Security numbers and cards, and requires the IRS and SS Administration to report annually on employers that file false returns.

Section 111 - requires the SS Administration to issue machine-readable, tamper resistant social security cards as soon as practicable; prevents the SS Administration from issuing a replacement card unless there is a legitimate reason for doing so, and requires the SS Administration to study using biometric authentication for work authorization documents.

Section 112 - provides for the protection of workers' information contained in employment databases maintained by the Federal government, and requires the SS Administration to report on false and expired social security numbers and work to eliminate such numbers.

Section 121 - requires all employers to participate in a program to verify a worker's employment eligibility within 6 years of enactment, and requires the Federal government to report on ways improve the basic pilot program on which this verification system is based.

Section 122 - provides a good faith compliance defense for employers who comply with the requirements of the above-referenced verification program.

Section 201 - creates a new guest worker visa that allows aliens to enter the US to work.

Section 202 - in order to obtain the above-referenced guest worker visa, an alien must have a job offer, pay a $250 fee and processing costs, undergo a medical exam, and provide information on his criminal history, gang membership, immigration history, and involvement with groups that have engaged in terrorist acts, genocide, persecution, or plans to overthrow the US.

In connection with the application, DHS can ask an alien to waive his rights to request a review of his application or to contest a removal action. The alien shall not be required to waive such rights, but must certify that he understands the application and that his statements are true and correct, and must authorize the release of any info in the application for law enforcement purposes. DHS may waive certain admissibility requirements if the alien pays a $100 waiver fee and may require the completion of background checks in connection with this visa application.

This visa is valid for 3 years and may be renewed for two additional 3-year periods if the alien remains employed and pays a $100 renewal fee for each renewal period. Upon expiration of the visa, the alien may not be granted any immigration benefit except asylum until he has lived in his home country for at least 3 years. Any alien who fails to leave the US within 10 days of such expiration is ineligible for any immigration benefit except asylum for a period of 10 years.

This visa shall be machine-readable, tamper resistant, and allow for biometric authentication, and may serve as an alien's travel, entry, and work authorization document.

The spouse and unmarried, minor children of an alien admitted to the US under this section are allowed into the US upon the same terms as the guest worker if they pay a $100 fee.

Such aliens, and their spouses and unmarried, minor children may travel freely into and out of the US.

Such aliens may also change employers with this visa, but failure to be employed for 30 consecutive days means the alien is ineligible for employment in the US until he leaves the country and provides proof of a new job offer (although this provision may be waived at the Secretary of Homeland Security's discretion).

An alien admitted to the US under this section may adjust status to that of a permanent resident after working in the US under this visa for 6 years. The worker's spouse and unmarried, minor children would also be eligible for this change in status.

500,000 visas could be issued in FY07 under this section, that number could be increased in later years based on need.

Section 203 - requires Mexico to help control human smuggling, drug trafficking, and illegal immigration in order for its nationals to be eligible for the benefits of the WISH Act.

Section 204 - ensures that these provisions do not create any substantive or procedural rights or benefits.

Section 205 - authorizes appropriations as may be necessary to carry out these provisions.

Section 301- allows aliens who are illegally in the United States to obtain the guest worker visa created in Section 201 if the alien was undocumented and working in the US when the WISH Act was introduced.

The alien must establish that he has not been unemployed for 30 or more consecutive days since introduction of the WISH Act, undergo a medical exam, and provide information on his criminal history, gang membership, immigration history, and involvement with groups that have engaged in terrorist acts, genocide, persecution, or plans to overthrow the US. An alien who applies for this change of status must also return all fraudulent documents.

In connection with the application, DHS may ask an alien to waive his rights to request a review of his application or to contest a removal action. The alien shall not be required to waive such rights, but must certify that he understands the application and that his statements are true and correct, and must authorize the release of any info in the application for law enforcement purposes. He must also pay a $250 fee, a $1000 fine, and processing costs. DHS may waive certain admissibility requirements if the alien pays a $100 waiver fee.

An alien is ineligible for this change of status if he is subject to a final removal order, failed to depart the US pursuant to an agreement, has been issued certain Notices to Appear, or fails to comply with DHS' request for information, and may be denied this change of status if he commits an act making him removable.

An undocumented alien must apply for this change of status within 3 years of enactment of the WISH Act, and DHS must process all such applications within 3 years of the date of the application. Such aliens shall not be required to leave the US in order to apply for this change of status, but aliens who fail to apply for such a change of status or leave the US within 6 years of enactment of the WISH Act are ineligible for any immigration benefit except asylum.

Applicants must provide biometric data to DHS and undergo background checks required by DHS.

This change of status is valid for 3 years and may be renewed for two additional 3-year periods if the alien remains employed and pays a $100 renewal fee for each renewal period. Upon expiration of the visa, the alien (if ineligible for a change of status as described below) may not be granted any immigration benefit except asylum until he has lived in his home country for at least 3 years. Any alien who fails to leave the US within 10 days of such expiration is ineligible for any immigration benefit except asylum for a period of 10 years.

This visa shall be machine-readable, tamper resistant, and allow for biometric authentication, and may serve as an alien's travel, entry, and work authorization document.

Aliens granted a change of status under this section, and their spouses and unmarried, minor children may travel freely into and out of the US.

Such aliens may also change employers with this visa, but failure to be employed for 30 consecutive days means the alien is ineligible for employment in the US until he leaves the country and provides proof of a new job offer (although this provision may be waived at the Secretary of Homeland Security's discretion).

An alien granted a change of status under this section who has been working in the US 5 years before the WISH Act's enactment may apply for any visa, adjustment of status, or immigration benefit except adjustment of status to that of a permanent resident after residing legally in the US pursuant to this section for 5 years. However, such an application may not be granted until the alien has returned to his home country. Aliens who have not been here 5 years before the WISH Act's enactment can remain in the US for 9 years under this section, but must then return to their home country for at least 3 years before they are eligible for any other visa or change in status.

The spouse and unmarried, minor children of an alien granted a change of status under this section are allowed into the US upon the same terms as the guest worker if they pay a $100 fee.

There is no limit on the number of changes of status that can be granted under this section.

Any person who files or assists with an application for a change of status under this section that includes a false statement is subject to criminal penalties.

Section 302 - ensures that these provisions do not create any substantive or procedural rights or benefits.

Section 303 - authorizes appropriations as may be necessary to carry out these provisions.

Section 401 - requires DHS to create a program to manage and track the employment of guest workers prior to admitting any workers/granting any changes of status under the WISH Act; the tracking program must provide a way to immediately verify the identity and employability of an alien. Employers must transmit biometric and biographic data of alien employees to DHS and must be authorized in order to hire aliens under the new guest worker program; hiring aliens without authorization results in a fine. Employers must notify DHS when an alien has been terminated and must post jobs in a national, electronic job registry for at least 30 days and offer the job to any eligible US worker who applies and is equally as qualified as an alien to ensure that there are no US workers for such jobs. Guest workers' employability must be verified prior to hiring, and employers must pay guest workers the applicable minimum wage and comply with other applicable laws.

Section 402 - requires DHS, in cooperation with DoL, to conduct random audits of employers hiring aliens to ensure compliance with rules, establish penalties for failure to comply with these provisions and protect alien whistleblowers.

Section 501 - authorizes $10 million for each of FY2007-2011 for a grant program to educate and train agencies, communities, and other interested entities/individuals about the WISH Act.

Section 601 - removes the numerical limit for H1-B visas held by aliens working at a college or related non-profit entity or a non-profit or governmental research organization.

Section 602 - removes the numeric limit on visas for aliens who have earned an advanced degree in science, technology, engineering, or math in the US and their spouses and unmarried, minor children.

Section 603 - allows full-time foreign college and graduate students to work while studying in the US.

Section 604 - allows foreign students who graduate from a US college with honors and who have a job offer in the US to transition from a student visa to a work visa without leaving the country.

Section 605 - allows foreign students to travel outside of the US to attend a seminar that is related to the student's chosen field of study.

Section 606 - requires DHS, subject to the availability of appropriations, to hire additional employees to speed the processing of student visa applications and improve technologies for processing such applications.

Section 701 - requires DHS to B-1 and B-2 visa holders who are visiting the United States temporarily to travel at least 100 miles from the international border during their visit.

Section 801 - expresses the sense of the Senate that immigration reform should address the employment of ag guest workers.